Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1(d) of the Convention. Imprisonment involving compulsory labour for participation in strikes. In the comments that the Committee has been making for many years, it has urged the Government to take the necessary measures to ensure that Article 1(d), of the Convention is applied.

(a). Decree No. 105 of 7 June 1967. The Committee has previously referred to Decree No. 105 of 7 June 1967 which allows a prison sentence of two to five years to be imposed on any person fomenting or taking a leading part in a collective work stoppage. The penalty laid down in the Decree for anyone who participates in such a stoppage without fomenting or taking a leading part in it is correctional imprisonment of three months to one year. For the purposes of this provision, “there is a work stoppage when there is a collective stoppage of work or the imposition of a lockout except in the cases permitted by law, the paralysing of the means of communication and similar antisocial acts”. Prison sentences involve compulsory labour under sections 55 and 66 of the Penal Code. The Committee has repeatedly insisted that, in accordance with the Convention, prison sentences involving compulsory labour should not be imposed for participation in peaceful strikes.

The Government has repeatedly indicated that it is making every effort to bring the national legislation into conformity with the Convention and that, to this end, it has taken measures for the Congress of the Republic to amend the provisions contained in Decree No. 105 of 7 June 1967. It indicated previously that, to this end, the Committee’s observation had been submitted to the relevant commissions of the National Congress. The Committee noted this information and expressed the hope that Decree No. 105 would be repealed without delay.

The Committee notes that in its latest report, the Government indicates that Decree No. 105 of 1967 is not in force but does not mention its repeal. The Committee notes with regret that it has been commenting for many years on the repeal of Decree No. 105 and that its repeal is also requested in its observations concerning the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Noting the most recent information provided by the Government, according to which Decree No. 105 is not in force, the Committee hopes that the Government will provide a copy of the text repealing that Decree and, in the event that the Decree concerned has not been formally repealed, the Committee once again expresses the hope that the Government will take the necessary measures to repeal it, thereby bringing the national legislation into conformity with the requirements of the Convention.

(b). Article 326(15) of the 2008 Constitution. The Committee notes that the new Constitution promulgated in September 2008 entered into force on 20 October 2008. The Committee notes that article 326(15) of the Constitution prohibits the stoppage of public services which are not essential services in the strict sense of the term, such as education, transport, processing, public transport and the postal services, and notes with regret that the Committee has been commenting on this prohibition in relation to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes that the Government indicates that the penalties applicable in the case of a stoppage in public services are those set out in the Penal Code.

Noting with regret that the new Constitution prohibits strikes in services that are not essential in the strict sense of the term and that such interruption may be punished as a penal offence, the Committee hopes that the Government will review this situation in the light of Convention No. 87 and Convention No. 105 which protects against prison sentences involving compulsory labour as a punishment for participation in peaceful strikes, and that it will provide information on the measures taken or envisaged to ensure compliance with the Convention.

Article 1(c). Sentence of imprisonment imposed as a means of labour discipline. Under the terms of section 165 of the Maritime Police Code, crew members are prohibited from disembarking in a port other than the port of embarkation, except with the agreement of the ship’s master. Section 165 further provides that crew members who desert shall forfeit their pay and belongings to the vessel and, if recaptured, shall pay the cost of arrest and be punished in accordance with the naval regulations in force.

The Committee previously noted the Government’s indication in its reports that it was making every effort to bring the national legislation into conformity with the Convention. In its latest report, the Government merely indicates that the Committee’s observation has been forwarded to the Directorate of the Merchant Navy.

Given that the Committee has been commenting on this matter for many years, it hopes that the Government will be able to provide information without delay on the amendment or repeal of section 165 of the Maritime Police Code.

Article 1(a). Imprisonment involving compulsory labour for offences related to freedom of expression and expression of political views. The Committee previously requested the Government to provide information on the application of the following sections of the Penal Code: 230 and 231 (disrespect or insult towards public officials); 130, 133, 134, 148, 153 and 155 (internal security of the State), in order to ascertain the scope of these provisions in relation to Article 1(a), of the Convention. The Committee recalled the implications for the application of the Convention of provisions that restrict the right to express peacefully a political opinion that is contrary to the established political system and requested the Government to provide information on the application of the above provisions of the Penal Code, including the number of sentences handed down, with copies of them, so that the Committee could assess their scope. The Committee hopes that the Government will provide the information requested and will indicate the measures taken or envisaged to ensure that prison sentences involving compulsory labour are not imposed for the peaceful expression of political views.